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2014 DIGILAW 980 (CAL)

Munshi Ayub Ali v. Sk. Abul Hossian

2014-10-29

JOYMALYA BAGCHI

body2014
JUDGMENT : Joymalya Bagchi, J. Nobody appears for the appellant. Mr. Ghosh, learned Counsel, is requested to appear as amicus curiae to assist the Court. 2. The appeal is directed against the judgment and order dated 12.01.1988 passed by the learned Judicial Magistrate, Arambagh, Hooghly acquitting the respondents of the charge of committing offences punishable under Section 379/427 of the Indian Penal Code. 3. The prosecution case as alleged in the petition of complaint is to the effect that the appellant was enjoying a land at Dag No. 12 in Mainan Mauja which was allotted to him and his brother by mutual settlement. The land standing on the northern side of the house also belonged to the appellant and he constructed a structure of bamboos thereon. On 14.06.1976 at about 12 a.m. in the night the accused persons formed an unlawful assembly, broke the bamboo construction and took away the bamboos and pieces of palm trees therefrom valued at Rs. 400/-. The matter was informed to Khanakul Police Station and Khanakul P.S. Case No. 8 dated 14.06.1976 was registered. In conclusion of investigation, a final report was filed by the police authorities which was accepted by the learned Magistrate on 18.12.1976. Thereafter the appellant filed a naraji petition which was treated as a petition of complaint against the accused persons alleging commission of offence punishable under Section 379/427 of the Indian Penal Code. The learned Magistrate took cognizance of the alleged offences and upon examination of the appellant and his witnesses issued process against the accused persons. During pre-charge enquiry, the prosecution examined five witnesses including the appellant under Section 244 of the Code of Criminal Procedure. Thereafter the learned Magistrate proceeded to frame charges under Section 379/427 of the Indian Penal Code against the accused persons. Accused persons pleaded not guilty and claimed to be tried. Defence of the accused persons was one of innocence and false implication. During trial, they cross-examined the prosecution witnesses to probabilise their defence. In conclusion of trial, the learned Magistrate by judgment and order dated 12.01.1988 acquitted the accused persons of the charges levelled against them. Pursuant to special leave granted by this Court on 22.03.1988, the instant appeal has been preferred. 4. P.W. 1 is the complainant of the instant case. During trial, they cross-examined the prosecution witnesses to probabilise their defence. In conclusion of trial, the learned Magistrate by judgment and order dated 12.01.1988 acquitted the accused persons of the charges levelled against them. Pursuant to special leave granted by this Court on 22.03.1988, the instant appeal has been preferred. 4. P.W. 1 is the complainant of the instant case. He has stated that on the fateful day on 12.01.1988 in the night the accused persons demolished the newly built cowshed and took away bamboo and other valuable articles valued at Rs. 400/-. In cross-examination, he stated that there is number of cases pending between himself and the accused persons and that he is an accused in a criminal case started on the basis of complaint of one Abu Ehia. He further deposed that he has instituted 36 cases against the accused persons. He stated that house of Sk. Karim was situated on the north side of his house. Cowshed was situated on the north-western side of his dwelling house. The home of Jaynal Abedin was situated on the contiguous west of his home. Soleman lived on the contiguous south of his house. House of Gous Mahammad, Salem and Jahiruddin and Anwar Hossian were situated on the eastern side of his home. He further stated that the incident occurred for 5 to 6 hours and he informed the police on the next day at 8 a.m. He also stated that there was another broken cowshed at the northern side of the house at the time of the incident. P.W. 2 is the son of P.W. 1, the appellant. In cross-examination, he stated that during the incident he could not proceed towards the P.O. as he was obstructed near the gate of Ayub Munshi. P.W. 3 is the nephew of P.W. 1. In cross-examination, he stated that he did not live in the village and resided in Calcutta. P.W. 4 is a mistry doing wood work. He stated that he worked for P.W. 1 for raising cowshed with bamboo and wood. In cross-examination, he has stated that the chalaghar was constructed for five days. It was situated on the northern side of the dwelling house of Ayub. P.W. 5 is another son of P.W. 1. In cross-examination he has stated that cowshed was situated on the north of the rear side of the house of Aesa. In cross-examination, he has stated that the chalaghar was constructed for five days. It was situated on the northern side of the dwelling house of Ayub. P.W. 5 is another son of P.W. 1. In cross-examination he has stated that cowshed was situated on the north of the rear side of the house of Aesa. The house of Aesa was situated on the north-western corner of their home. 5. Mr. Ghosh, learned Counsel, appearing as amicus curiae, submits that the evidence on record was rightly appreciated by the trial court and the findings recorded in the impugned judgement and order cannot be said to be perverse or contrary to law. 6. Mr. Banerjee, learned Additional Public Prosecutor, appearing on behalf of the State, submits that the investigation in the crime had resulted in the filing of a final report which was accepted by the Court. There was no seizure of any broken materials. There was also no recovery of any stolen articles from the accused persons. 7. I have examined the evidence on record. I find that P.W. 1 has deposed that the cowshed was built by P.W. 4. According to P.W.1 the cowshed is situated on the north-western side of his dwelling house whereas P.W. 4 has stated that the cowshed was built on the northern side of the house of the appellant. Evidence of P.W. 5 is to the effect that the cowshed was situated on the north of the rear side of the home of Aesa. The version of the witnesses are, therefore, not consistent as to the exact place where the cowshed of the appellant was constructed. Even if it is assumed that cowshed of the appellant was constructed on the north-western corner of his house, the evidence with regard to the accused persons demolishing the cowshed and stealing the bamboo and other articles, therefrom, is not corroborated by independent evidence. The prosecution solely hinges on the evidence of P.W. 1. Other witnesses cannot be said to be eye-witnesses of the incident. Although it is the evidence of P.W. 1 that the incident went for 5 to 6 hours and there were a number of houses around the place of occurrence, none of the inmates of the said houses or any other independent witness has come forward to depose that the accused persons had demolished the cowshed of P.W. 1. Although it is the evidence of P.W. 1 that the incident went for 5 to 6 hours and there were a number of houses around the place of occurrence, none of the inmates of the said houses or any other independent witness has come forward to depose that the accused persons had demolished the cowshed of P.W. 1. Relationship between P.W. 1 and the accused persons is admittedly strained and there is a number of cases pending by and between themselves. 8. Accordingly, the trial court rightly disbelieved the uncorroborated version of P.W. 1 and recorded an order of acquittal. 9. It is trite law that if two views are possible, a reasonable view adopted by the trial court ought not to be set aside in an appeal against acquittal. That apart, there is no recovery of any broken bamboo or palm trees or other articles from the place of occurrence. There is also no recovery of the stolen articles from the possession of the accused persons. 10. In the light of the aforesaid discussion, I am of the opinion that the findings recorded by the trial court to acquit the accused persons cannot be said to be perverse, unreasonable or contrary to law. 11. Accordingly, the appeal is dismissed. 12. Lower court records along with a copy of the judgment be sent down to the Court forthwith. 13. I record my appreciation for the able assistance extended by Mr. Ghosh as amicus curiae for disposal of the appeal.